Domestic Assault: What are the best defences?

When someone is charged with domestic assault the best defence is proving that the assault did not happen. People have various reasons to make false accusations, or to exaggerate the severity of an incident that was already highly emotional and confusing. When that happens, you need an experienced defence lawyer to present your case in the most effective way possible.

When weighing evidence judges assess the credibility of all parties. That is shown in a Halifax case where a man was charged with assault and sexual assault by a woman with whom he was separating. According to court documents, she alleged he forced her into sex and physically assaulted her on a separate occasion.

In dismissing both charges, the judge noted: “Here, credibility is the paramount issue … in short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth.”

What is self defence?

The Criminal Code gives people the right to defend themselves or others from being hurt, or to defend their property or another person’s property. As the Code states, “A person is not guilty of an offence if:

  • they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
  • the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
  • the act committed is reasonable in the circumstances.”

Determining what actions were “reasonable in the circumstances” is a contentious issue for courts to decide, so the Code provides this guidance: “In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

  • the nature of the force or threat;
  • the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
  • the person’s role in the incident;
  • whether any party to the incident used or threatened to use a weapon;
  • the size, age, gender and physical capabilities of the parties to the incident;
  • the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
  • any history of interaction or communication between the parties to the incident;
  • the nature and proportionality of the person’s response to the use or threat of force; and
  • whether the act committed was in response to a use or threat of force that the person knew was lawful.”

Here is a hypothetical example. If a couple is having an argument and the husband tries to prevent the wife from leaving the residence, she is entitled to push him out of the way and leave. But if she causes him grievous injury in doing that, she cannot claim she was acting in self-defence. A court will also consider the other factors in determining what was reasonable in the circumstances, including: 

  • The history of the two parties;
  • whether either party was intoxicated;
  • their size, age, gender and physical capabilities;
  • the nature of the force being used;
  • whether there were other ways to respond;
  • any prior force events; and
  • whether the responding force was proportional to the initial force.

What if the incident was trivial?

While intentionally applying any amount of force to another person in a domestic setting can lead to domestic assault charges, if that force is trivial, it may be possible to advance the common law defence of de minimis non curat lex, meaning “the law is not concerned with trifles.”

Here are two cases where the de minimis defence was used. The first involves a Halifax student who witnessed through a window what she described as a man striking a woman with his fists. According to court documents, police were called and an officer found the woman crying, though she claimed her husband had not assaulted her. Still, the man was charged with assault.

At trial, he raised the defence of de minimis non curat lex, the judgment states, arguing “the rigid enforcement of a pro arrest, pro charge and pro prosecution protocol in cases of domestic violence … leads to absurd and unjust consequences that impact adversely upon the public’s perception of the judicial process … such an approach, as in the case at bar, leads to absurd and unjust consequences that impact adversely upon the public’s perception of the judicial process.”

The judge agreed and dismissed the charge.

But that defence does not always work. In Regina, a separated couple were cohabiting in the matrimonial home. According to court documents there was a disagreement about who would take one of their children to a dance, with the woman kicking and striking the husband in the lower body. She then punched him in the mouth with a closed fist, and as he tried to leave the residence, she threw a bottle at his truck and kicked the passenger door. 

She was charged with assault, and at trial, the man said he did not retaliate as he was not really in danger, since he is six-foot-two and 190 pounds while she is half his size and weight. The judgment notes the woman advanced the de minimis defence, which the court rejected.

“The nature of the injuries, the number of blows, and the protracted length of [her] onslaught on [him] all militate against a finding that her actions were trivial,” court documents read. “These were admittedly actual blows and kicks, not like the kind of incidental or trivial contacts dealt with in some of the other cases.”

The judgment also tracks down the origin of the defence, noting it has been “traced back to a case called The Reward (1818) … in which Sir Walter Scott said: ‘The Court is not bound to the strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim de minimus non curat lex. – Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.’”

Why do courts take domestic assaults so seriously?

While there is no specific offence of domestic assault in the Code, any violence that occurs in a home or in a cohabitation setting could fall into that category, according to this Department of Justice factsheet. When charges relating to family violence are laid, courts have a wide range of powers to release or detain an accused person, or demand there be no contact until the trial or appeal.

Special consideration is given to the harm that comes from family violence, which is why it is considered an "aggravating factor" for sentencing purposes when the offence involves a spouse or common-law partner, a person under the age of 18 or abuse by a  position of trust or authority.

Experienced counsel makes the difference

Being charged with domestic assault can have far-reaching consequences. Your family life will be torn apart and you will likely have to avoid contact with family members. This is done in order to lower the chance of people committing further domestic abuse, but this policy can feel unjust to those dealing with false allegations.

In addition, your employment opportunities may be limited as you will not be able to travel outside the country. If found guilty, you could be facing a fine, incarceration or both.

Knowledgeable legal counsel can help you secure the justice you deserve. I’ve helped many people facing domestic abuse charges, allowing them to have charges dropped or to avoid a criminal record through peace bonds or discharges.

Contact me for a free consultation so we can start planning your best defence.

Filed Under
Domestic Assault